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The Courts Government GNU is Not Unix News

German Court Convicts Skype For Breaching GPL 309

Posted by kdawson
from the means-what-it-says dept.
terber writes "A German court has once again upheld the GPLv2 and convicted Skype (based in Luxembourg) of violating the GPL by selling the Linux-based VoIP phone 'SMCWSKP 100' without proper source code access. (Original is in German, link is a Google translation.) Skype later added a flyer to the phones' packaging giving a URL where the sources could be obtained; but the court found this insufficient and in breach of GPL section 3. The plaintiff was once again Netfilter developer Harald Welte, who runs gpl-violations.org. The decision is available in German at www.ifross.de (Google translation here)."
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German Court Convicts Skype For Breaching GPL

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  • Correct terminology (Score:5, Informative)

    by Akaihiryuu (786040) on Tuesday July 24, 2007 @01:55PM (#19973519)
    Noone would be convicted of "breaching the GPL". The GPL is not an EULA. If you violate the terms of the GPL, you are (re)distributing without a license permitting you to do so (since the GPL, which you violated, is the only thing that gives you permission to do so), which is a copyright violation, not a GPL violation. I wish articles would get the specifics right.
  • The actual problem is that they did not include the text of the GPL with the phone. The summary here in Slashdot didn't mention that, and had me wondering what the problem with the provided URL was.
  • by mrchaotica (681592) * on Tuesday July 24, 2007 @02:14PM (#19973797)

    The GPL is permissive, and thus turns the usual function of copyright on it's head.

    In other words, usually when people violate copyright it's through an act that increases the spread of the information, and prosecuting them for it would restict that spread. In contrast, when people violate copyright by failing to abide by the GPL, they themselves are restricting the spread of the information and prosecuting them restores it.

    If one (e.g., a "loyal drone") consistently believes that spreading information is good and restricting it is bad, there is no contradiction.

  • Source Code (Score:5, Informative)

    by jshriverWVU (810740) on Tuesday July 24, 2007 @02:31PM (#19974065)
    If anyone is looking for the source code it's here [smc.com]

    Can also check out this link for more info here [wifiphone24.com]

  • You are all wrong (Score:2, Informative)

    by WindBourne (631190) on Tuesday July 24, 2007 @02:36PM (#19974123) Journal
    1. Copyrights are GOOD.
    2. GPL is GOOD.
    3. Skype is Good.
    4. Skype did a bad thing in trying to take something and then distribute it without meeting the LEGAL terms of it.

    This is opposed to items (say a CD) which says that you may not copy them, which is a lie since it is LEGAL to copy things for personal use. What you may not do, is to distribute them for your gains.
  • Re:You are all wrong (Score:3, Informative)

    by vux984 (928602) on Tuesday July 24, 2007 @02:45PM (#19974235)
    What you may not do, is to distribute them for your gains.

    'for your gains' is not a required condition.
  • Re:You are all wrong (Score:3, Informative)

    by L0rdJedi (65690) on Tuesday July 24, 2007 @02:46PM (#19974261)
    The only thing Skype did wrong, which the summary doesn't mention but someone else did, is that they didn't include a copy of the GPL with the phone.

    The court said including a website address to where the source could be downloaded wasn't good enough. I'd like to know why that wasn't good enough. Is it only because the text of the GPL wasn't included?

    This doesn't look like a win for the GPL. This looks like a major pain in the ass. I didn't even know that distributing a copy of the GPL was a requirement. I've never read it fully, but I guess I just assumed that as long as you make the source code available, everything is fine.
  • by Kjella (173770) on Tuesday July 24, 2007 @02:51PM (#19974341) Homepage
    Zwar wurde dem Gerät später ein Beiblatt beigelegt, das auf die verwendete GPL-Software verwies und eine URL enthielt, wo die Quelltexte abrufbar sind - doch dies genügte dem Gericht im vorliegenden Fall nicht. Diese Möglichkeit sehe die GPL nur für Software vor, die über das Internet geliefert wird.

    Rough translation (but better than google):
    "Later a note was included with the device, which said it used GPL software and a URL where the source code is available - but this was not enough for the court. The GPL only permits this for software that is delivered over the Internet."

    Doesn't that get covered by 6 b) 2):
    "6. Conveying Non-Source Forms.

    You may convey a covered work in object code form under the terms of sections 4 and 5, provided that you also convey the machine-readable Corresponding Source under the terms of this License, in one of these ways:
    (...)
    b) Convey the object code in, or embodied in, a physical product (including a physical distribution medium), accompanied by a written offer, valid for at least three years and valid for as long as you offer spare parts or customer support for that product model, to give anyone who possesses the object code either (...) or (2) access to copy the Corresponding Source from a network server at no charge."

    Or maybe it didn't come as a permanent offer, in which case they might be talking about 6 d):
    "d) Convey the object code by offering access from a designated place (gratis or for a charge), and offer equivalent access to the Corresponding Source in the same way through the same place at no further charge. (...)"
  • by ThePiMan2003 (676665) on Tuesday July 24, 2007 @02:51PM (#19974351)
    Thats actually just fine under the GPL, but when you hand that executable to someone else, thats when the GPL is invoked. If you grab some code change it and just use it for yourself you do not need to do anything, but when you distibute it, by putting it on phones you sell, or putting the binary up for download somewhere you must also include the source.
  • Re:You are all wrong (Score:2, Informative)

    by ericrost (1049312) on Tuesday July 24, 2007 @02:55PM (#19974407) Homepage Journal
    Yes, the GPL says specifically that you must include a copy of the GPL to make sure the user knows his rights.

    Section 1:
    "You may copy and distribute verbatim copies of the Program's source code as you receive it, in any medium, provided that you .... and give any other recipients of the Program a copy of this License along with the Program."
  • by Bogtha (906264) on Tuesday July 24, 2007 @02:55PM (#19974415)

    There's a minority opinion in US circles that suggests that copying an executable, in order to use it, constitutes fair use.

    It's not fair use, because copies of software that are made for the purpose of using it are not covered by copyright in the first place. The law is explicit about this [cornell.edu]:

    Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner

    In short: It's not fair use (that's a different set of exemptions), but it is legal.

  • by Anonymous Coward on Tuesday July 24, 2007 @03:58PM (#19975347)
    Seriously, looking at http://gpl-violations.org/support.html [gpl-violations.org] everyone can see that Harald is asking for help in maintaining the site - and the site badly needs it.

    So, instead of talking about the GPL on /. why not help running gpl-violations.org?
  • by Kjella (173770) on Tuesday July 24, 2007 @05:13PM (#19976257) Homepage
    At some point there will be a case where an evildoer will use the defense that since the copyright holder didn't pursue company X 5 years ago they should be prevented from trying to do it now. And poof! The copyright will vanish or be declared null and void and with it the GPL distribution license that goes along with it.

    Wow, did you drink some SCO FUD? Copyrights are never nullified because of lack of enforcement, and I dare you to find an example. Not enforcing them may limit your ability to collect damages, but at any time you can send an injunction to make them stop.

    What's needed is enforcement of copyright law:
    506. Criminal offenses
    (a) Criminal Infringement.
    (1) In general. Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed
    (A) for purposes of commercial advantage or private financial gain;

    2319. Criminal infringement of a copyright
    (a) Any person who violates section 506 (a) (relating to criminal offenses) of title 17 shall be punished as provided in subsections (b), (c), and (d) and such penalties shall be in addition to any other provisions of title 17 or any other law.
    (b) Any person who commits an offense under section 506 (a)(1)(A) of title 17
    (1) shall be imprisoned not more than 5 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution, including by electronic means, during any 180-day period, of at least 10 copies or phonorecords, of 1 or more copyrighted works, which have a total retail value of more than $2,500;
    (2) shall be imprisoned not more than 10 years, or fined in the amount set forth in this title, or both, if the offense is a second or subsequent offense under paragraph (1); and
    (3) shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, in any other case.

    If you're using a substantial amount of GPL'd code beyond the rouge developer taking code, that should be enough to know you're willfully infringing. Being a for-profit company should be enough to prove "for commercial advantage". At which point they should be strung up on criminal charges and sent to jail like with SOX regulations. That's how it should be, note there's no minimum amount to make (3) go into effect and send them away for a year, even at a $0 "retail value" as long as you can prove *they* earned money on it.
  • by FooBarWidget (556006) on Tuesday July 24, 2007 @05:45PM (#19976675)
    "The GPL is permissive the same way the 13th amendment is permissive. Both prevent you from taking away the rights of others."

    No, because under copyright law, you never had that right in the first place. The GPL gives you *more* rights than you had, it just doesn't give you the right to not give the same rights to others.
  • by MooUK (905450) on Tuesday July 24, 2007 @06:25PM (#19977175)
    On top of that, the GPL itself specifically states that running the program is outside the license and is always permitted.
  • Re:Definitions... (Score:3, Informative)

    by DragonWriter (970822) on Tuesday July 24, 2007 @06:39PM (#19977345)

    So, you can copyright source code, no problem. I know there is a bit of confusion about the meaning of the term "derivative work" and here's an example.

    Let's say I have a trivial program, say, "Hello World" or something like that. What exactly is the copyrighted bit here? Is it the source - that is, the exact language representation used - say, C++ or Pascal or Assembly?

    Certainly.

    Or is it the instructions generated by that source?

    Provided that you (the copyright holder) generate them (by running the compiler/linker/etc.), certainly, they are included as part of the original copyrighted work (or perhaps another copyrighted work, the distinction is probably unimportant in most cases, though for copyright time limits it may be important if the source is recompiled differently at a later time.)

    How many different source code versions of "hello world" can compile into the same executable?

    An infinitely large number. But copyrights aren't patents, so if someone else happens to generate the same executable from their own independently developed source that I developed from my copyrighted source, we could both have copyright on our own soure, and each have a independent copyright to the identical executable.

    The reason I'm not sure it's the "instructions generated by that source" is because that means that the copyright can extend to things that do not yet exist.

    Copyrights do extend to things that don't exist at the time the original work is created; all derivative works, for instance, by definition do not exist when the original work is created, yet are covered by copyright.

    Let's say I have a copyrighted bit of code. Then let's say that some guy comes along 3 years later and writes, for a brand-new architecture that didn't exist when I obtained my copyright, in a different language, some library that performs the functionality of my code and compiles it. Now let's say someone compiles my code on the new machine and the compiled version of my library is the same as the "independently developed" code (which is possible in certain cases).

    So here's the question - did the guy developing for the new architecture violate my original copyright or not?

    No, because while identical, the code is not in fact derived from your original expression. This is where copyrights differ from patents (aside from the kind of things they apply to), because the latter covers even independent inventions, while copyright only protects copies, not coincidences.

    It's quite important, because if you can only copyright source code and not the binaries - then that is an interesting situation. If the copyright really applies to the compiled binaries that's another interesting situation. It seems, however, that the current take is that it applies to both things simultaneously.

    It applies to both, but not to independently developed works, however similar (though proving that a work is independently developed may be a challenge if the similarities are so strong as to make coincidence seem unlikely.)

    Another odd situation - what happens if I reverse-compile a copyrighted program and then distribute the reverse compilation. I generated a new, different work than the original source code and a different "work" than the compiled binary. Or did I?

    You did create a new, different work. However, it is a derivative work, and thus probably violates copyright unless some special exception applies.

    Is that different than me going to a museum and sketching The Scream?

    No, not really.

    The only conclusion I can make at this point is that the artificial constructs of copyright need some work.

    Given your admitted ignorance of copyright,

  • by voltheir (1087207) on Tuesday July 24, 2007 @06:54PM (#19977497)
    RTFM
    They convicted SMC, who makes a Skype phone, of the GPL violation because they didn't include the source code with the phone. NOT skype

    how can every slashdot mod and user be completely wrong?
  • by cpt kangarooski (3773) on Tuesday July 24, 2007 @08:09PM (#19978175) Homepage
    There isn't one. When you make a copy of a copyrighted web page in order to browse it, as you necessarily must, if only into RAM, you had better either have a license (either express or implied), or an applicable exception, or else you're infringing. So say the courts.
  • Re:Damn (Score:3, Informative)

    by Anonymous Coward on Wednesday July 25, 2007 @06:33AM (#19981477)
    Section 6:

    "You may convey a covered work in object code form under the terms of sections 4 and 5, provided that you also convey the machine-readable Corresponding Source under the terms of this License, in one of these ways:

    a) Convey the object code in, or embodied in, a physical product (including a physical distribution medium), accompanied by the Corresponding Source fixed on a durable physical medium customarily used for software interchange."

    The thing is that Skype sold a physical produt (a phone), and according to the wording of the GPL the code needs to be distributed on a durable physical medium with this product.
  • Re:Skype is good? (Score:3, Informative)

    by hughk (248126) on Wednesday July 25, 2007 @07:09AM (#19981731) Journal
    Skype is hard to firewall. This means that if you can get to the internet with your PC, you can normally access Skype. I'm sure that hotels would like to stop it to force into using their expensive telephones. Mobiles aren't always an option when you are travelling overseas due to extortionate roaming rates. Skype has saved me a fortune on international calls.

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